Miles-Hickman v. David Powers Homes, Inc.

• Decision Date: 09 December 2008
• Docket Number: Civil Action No. H-07-0754.
• Citation: 589 F.Supp.2d 849
• Parties: Pamela MILES-HICKMAN, Plaintiff, v. DAVID POWERS HOMES, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

Page 849

589 F.Supp.2d 849

Pamela MILES-HICKMAN, Plaintiff, v. DAVID POWERS HOMES, INC., Defendant.

Civil Action No. H-07-0754.

United States District Court, S.D. Texas, Houston Division.

December 9, 2008.

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Steven E. Petrou, Attorney at Law, Cypress, TX, for Plaintiff.

Carol P. Keough, Coats Rose et al, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This case arises from events occurring during the employment of Plaintiff Pamela Miles-Hickman's ("Hickman" or "Plaintiff") by Defendant David Powers Homes, Inc. ("DPH" or "Defendant") and the cessation of that employment. The parties have filed several motions. First, Plaintiff filed a Motion for Partial Summary Judgment [Doc. # 43] ("Plaintiff's Motion"), in which she seeks summary judgment on her COBRA¹ claim against Defendant.² DPH filed a Motion for Summary Judgment [Doc. # 46] on all claims Plaintiff asserts in this case.³ DPH has additionally filed a Motion for Partial Summary Judgment on Damages [Doc. # 48] ("Defendant's Damages Motion").⁴ Upon review of the parties' submissions, all pertinent matters of record, and applicable law, the Court concludes that Defendant's summary judgment motion on liability should be granted in part and denied in part, that Defendant's Damages Motion should be granted in part and denied in part, and that Plaintiff's Motion should be granted in part and denied in part.

Hickman also has filed a Motion to Exclude Defendant's Experts [Doc. # 47] and Objections to Defendant's Motion for Summary Judgment on All of Plaintiff's Claims [Doc. # 57].⁵ DPH has similarly filed Objections to Plaintiff's Summary Judgment Evidence [Doc. # 64].⁶ The Court will rule on these motions only to the extent that the Court relies on information to which a party objects.

I. FACTUAL BACKGROUND

The background facts can be summarized as follows. Hickman was hired on an at-will basis as a sales assistant with homebuilder DPH in September 2003. She was assigned to the Crighton Ridge community to assist with home sales. Upon being hired and during her tenure, Hickman was provided a variety of employment documents, including an employee handbook and information concerning employee benefits. As a DPH employee, Hickman received employer-paid health insurance from Aetna Health, Inc. ("Aetna").

Hickman claims to suffer from a variety of ailments that she asserts render her extremely sensitive to certain chemicals, strong fragrances, and peanuts. Accordingly, she requested and received informal accommodations from the Crighton Ridge Sales Consultant, Bill Oldham. Oldham refrained from wearing heavy cologne and prohibited cigarettes in Hickman's work area. He also ensured that no pesticides, wet paint, candles, or fragrances were used in Hickman's work area when she was present, and that odorless ant bait was used by DPH's maintenance staff, among other directives. Hickman alleges that on November 18, 2005, immediately after DPH terminated Oldham's employment, she had a discussion with Jennifer Fusco, DPH's Director of Human Resources, about Hickman's various allergies and the accommodations Oldham had made. Hickman states she orally requested at that time that Oldham's replacement continue to honor her requests. On December 1, 2005, Hickman wrote an email to Fusco outlining some of her disabilities and requesting formal ADA accommodations.⁷ There appears no dispute that Fusco responded, pursuant to DPH's policy, that Hickman needed to provide a report from a physician substantiating her medical conditions and addressing the accommodations she was requesting, so that the company could initiate the process of determining whether and how to accommodate Hickman's needs.

Hickman reports that before she was able to comply with the substantiation request, Fusco and DPH Sales Director, Kevin Weiderhold, came to her office on December 7, 2005, and, for the first time since she was hired two years earlier, provided her feedback on her job performance. Hickman states that Fusco and Wiederhold criticized her performance and attempted to demote her by relocating her to another DPH community. Hickman claims that after she protested that she was being discriminated against because of her disability, they rescinded the "demotion" but informed Hickman that if she did not meet certain sales requirements within thirty days, she would be terminated.⁸

A few days after the December 7, 2005, meeting, Hickman began experiencing medical problems and required a battery of medical tests. Hickman asserts that she contacted Bob Svoboda, Bill Oldham's replacement as Crighton Ridge Sales Consultant—who she claims was her immediate supervisor and the proper person to contact in event of an absence from work—and/or co-workers at DPH each of the four days she missed work as a result of her illness, both to inform them that she would be absent and to check on projects on which she was working. Hickman has also testified that on December 14, 2005, she left a message on Kevin Wiederhold's voicemail regarding taking time off for medical tests, although, Defendant disputes this assertion.⁹ The day before her scheduled return on December 17, Hickman discovered an email from Fusco explaining that because Hickman allegedly failed to comply with DPH's "Attendance, Punctuality, and Dependability" policy, she was deemed to have voluntarily resigned.¹⁰

Hickman asserts that following her separation from DPH, the company failed to provide her with notice and information concerning her entitlement to continuation of her health benefits. DPH disputes this allegation, pointing to language in the DPH employee handbook concerning posttermination coverage,¹¹ and to the separation letter sent to Hickman on December 16, 2005, wherein it states: "Your benefits will run through December 31, 2005. After that date, you will be eligible for CBRA, and will be sent notification directly from InfiniSource (our COBRA outsource company)."¹²

Hickman subsequently filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging disability discrimination and retaliation. Upon receiving a "Notice of Right to Sue" letter from the EEOC, she timely filed this lawsuit, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB.CODE § 21.001 et seq., the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"), 29 U.S.C. § 1161 et seq.

DPH has moved for summary judgment on all claims and the damages asserted by Hickman. Hickman seeks summary judgment in her favor on her COBRA claim.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). In deciding a motion for summary judgment, the Court must determine whether the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an "absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party may meet its burden by pointing out "`the absence of evidence supporting the non-moving party's case.'" Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak, 953 F.2d at 913). However, if the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the non-movant's response. ExxonMobil Corp., 289 F.3d at 375.

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001). "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). However, factual controversies are resolved in favor of the non-movant "only when there is an actual controversy—that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See Diamond Offshore Co. v. A & B Builders,...